ABSTRACT
The notion of ‘rule of law’ is of course a contestable concept. It is not only peripheral applications of the concept but even the very core of its meaning or meanings that are contested (Tamanaha 2004). Nevertheless, for the purposes of this chapter, I take it as given that eliminating impediments for citizens and communities to access justice is a critical component in enhancing compliance with rule of law principles. (Usually ‘access to justice’ writings focus on contemporary issues and the barriers faced by individuals and communities seeking to obtain a fair hearing and due process.) The focus of this study is justice for communities of people who seek a contemporary forum for the consideration of historical injustices they have suffered and which arguably continue to impact negatively on members of those communities. There are a number of historical injustice issues that are now being dis-
cussed in courts and other fora, and by scholars. These injustices cannot be addressed in ordinary legal proceedings because of various rules preventing claims being litigated long after the events in question. Nevertheless, some high-profile political and legal strategies have been resorted to in campaigns for reparations. Reparations sought may range from governmental apologies, to affirmative action programs for members of the group, to monetary awards – though invariably monetary awards are set at a quantum of ‘redress’ considerably less generous that full and fair ‘compensation’. Examples include the communities of people descended from those subjected to transatlantic transport slavery; of Chinese descended from migrants subjected to poll tax regimes and other discriminatory practices; of Japanese Americans whose ancestors were forcibly relocated and confined in wartime. This paper is concerned with reparations sought for historical injustices
committed against indigenous peoples whose countries were subjected to European colonialism. This is of increasing importance given the adoption by the General Assembly of the United Nations Declaration on the Rights of Indigenous Peoples on 13 September 2007. It is also the subject of great scholarly interest in many parts of the world (Lenzerini 2008). In general terms, the
paper is concerned with regions colonized and settled by European settlers to such an extent that the indigenous communities became a marginalized minority within what, for many centuries prior to the incursions of colonialism, had been their own lands under their own control, of which the American continents and the Australasian colonies (now Australia and New Zealand) are the most obvious examples. This case study relates only to the indigenous Maori communities in the modern nation of New Zealand, now also commonly known by one of its Maori names: Aotearoa. There is some diversity in the social ordering of the variousMaori communities, tribes and nations in Aotearoa, but there are also strong genealogical links between them, and a common language. In many parts of the world there may be ambiguity or doubt as to the meaning of the term ‘indigenous peoples’, as for example in Malaysia (Sethu 2007: 256-57). However, only Maori communities had ever populated Aotearoa prior to the arrival of European traders and settlers and a few Chinese migrants in the years immediately before and after the establishment of the colony. Other migrant communities have contributed to the population mix in more recent years and it is now common to speak of multiculturalism. The origins of the nation, however, were bicultural – a meeting of indigenous Maori with British officials and settler Europeans. The forum considered here is the Waitangi Tribunal, a permanent commis-
sion of inquiry established by an Act of the New Zealand Parliament – the Treaty of Waitangi Act 1975 – to inquire into and report on claims brought by Maori against the Crown. ‘The Crown’ is New Zealand law shorthand for the executive government of New Zealand under administrations – imperial, colonial and national – since the proclamation of British colonial rule. The Treaty of Waitangi was signed at the inception of colonial rule in 1840. Its ongoing guarantees to the Maori signatories and their communities from most parts of the New Zealand islands are generally understood to qualify or modify the governance and sovereignty rights claimed by the Crown in right of New Zealand (Waitangi Tribunal 1995: 201-2; Hayward 2004: 29-40). In almost all parts of the world the decolonization processes consigned colonial treaties with indigenous peoples to the dustbins of history. The colonized peoples, the majority population in most territories colonized by European empires, have exercised their rights to self-determination and independence. Their governments are now members of the United Nations. Treaties from the colonial era remain important, however, for indigenous peoples – sometimes called the ‘Fourth World’ – for whom there has been no decolonization. The opportunity for Maori claimants to seek some form of justice or equity
in respect of their many historical grievances against the Crown was first created when the Waitangi Tribunal was granted a retrospective jurisdiction by the Treaty of Waitangi Amendment Act 1985. The Tribunal does not possess powers of adjudication, but in 1985 it was empowered to make findings of historical facts and to make recommendations as to how the historical prejudice suffered by successful claimants might be redressed. A large proportion
of the nearly 100 reports issued by the Tribunal relate to historical claims (Hayward and Wheen 2004: 207-9). The Tribunal was established before the Truth and Reconciliation Commission in South Africa popularized such commissions as a means to inquire into painful and politically charged episodes from the past. Yet the Tribunal’s work does encourage some elements of the cathartic healing for historic injustices that might emerge in truth and reconciliation proceedings elsewhere. Most Maori are fully aware of the somewhat derisory economic redress available to large Maori groupings under the government’s current Office of Treaty Settlements policies (Office of Treaty Settlements 2002). Hence, whilst seeking such economic redress as is available, they place great store by obtaining the publication of findings by the Waitangi Tribunal that:
* the Crown acted dishonorably in the past; * the unsuccessful attempts of their ancestors to protect their community
against Crown policies have been vindicated; and * the Crown now owes them an apology for past breaches of the Treaty of
Waitangi.
